Measure targets frivolous suits

Hoping to cut down on frivolous lawsuits, a first-term lawmaker wants to give judges more power to force one side in a claim to pay the legal fees of the other.

Current law permits judges to assess legal fees and other costs in some cases. That includes instances where a lawsuit was filed or a defense was offered that is "without substantial justification."

But Rep. Ted Vogt, R-Tucson, said the requirements already are too restrictive.

His legislation would remove the requirement that someone show that the legal action constitutes harassment.

"That is an extremely high burden to meet," he said. "Rarely, if ever, does a court find harassment."

Vogt said, though, that someone saying a lawsuit was filed or a defense was offered without substantial justification would still have to show that the action was groundless and not made in good faith.

The more sweeping part of HB 2544, though, would ease the requirement that a court must find there is "clear and convincing evidence" that an attorney acted improperly before awarding legal fees and costs. Instead, the decision would be made on the basis of the "preponderance of the evidence."

That difference is significant.

The proposed standard means the complaint of a frivolous action is more likely true than not. The current standard, by contrast, requires something more than a balancing test.

Vogt defended the change by saying it's left to the discretion of the court.

"If the judge looks at it and says, more likely than not this was brought because it's baseless, that's pretty clear to a judge," Vogt said. "Or it's brought for undue delay if they're just trying to bog down the other party, the judge is in the perfect situation to look at that."

Anyway, he said, preponderance of the evidence is the same standard used to decide who wins in civil lawsuits.

Vogt, a 2009 graduate of the University of Arizona College of Law, tried a different approach last year with legislation that would have empowered judges to award legal fees to whoever wins a lawsuit, regardless of whether it was brought in good faith or not.

That provoked sharp objections from the Arizona Trial Lawyers Association whose members represent those who file civil suits.

Janice Goldstein, the group's executive director, said that that created an unfair situation because it might deter someone from filing an otherwise legitimate action against a corporation because of fear he or she might end up on the hook for that company's legal fees.

Vogt abandoned that approach when it failed to gain traction, deciding to pursue this scaled-back proposal instead.

He said this new version is balanced, with a judge equally empowered to assess fees and costs not only against plaintiffs for frivolous lawsuits but also against those who offer defenses that lack merit or are put forward for harassment or delay.

The legislation has won unanimous approval in the House Judiciary Committee.